New trial in brutal beating

Court rules teen did not get fair trial; DA remarks cited

Updated 7:29 pm, Wednesday, November 27, 2013

A teenager found guilty of a near-deadly beating in Albany in 2010 has a new chance at freedom after an appeals court ruled Wednesday that a prosecutor's closing argument deprived him of a fair trial.

The unanimous ruling by four justices on the Appellate Division of state Supreme Court reversed the felony assault and robbery conviction of Lukee Forbes, now 19, who was serving a sentence of 3 1/3 to 10 years behind bars.

The justices found "ample evidence" against Forbes to warrant his conviction in the July 13, 2010, random attack on Louis Stelling, then 30, who was struck on the head with a tree limb near Morris and Robin streets as he walked home from the 2010 Capital Pride Parade during gay pride week.

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But the justices found the prosecutor's closing remarks too "inexcusable" not to grant Forbes a new trial.

"Summations rarely are perfect," stated the ruling, written by Appellate Justice John Egan and supported by Justices John Lahtinen, Leslie Stein and Edward Spain. "For that reason, we accord counsel a certain amount of leeway in this regard and recognize that not every improper comment made by the prosecuting attorney during the course of closing arguments warrants reversal of the underlying conviction. Here ... we are unable to conclude that the foregoing errors were harmless."

The decision found Assistant District Attorney Brian Conley improperly told jurors that in order to believe Forbes' version of events, they would have had to accept that there was a far-reaching plot in place to frame Forbes that included Judge Stephen Herrick, who presided over the case, and Forbes' co-defendants Roscoe Ervin and Quayvon Young, who testified against Forbes.

It was Ervin who struck the man with the tree limb.

"You have to believe there was a conspiracy against (Forbes)," Conley told the jury, "that every single one of the witnesses that came in here went over there, put their hand on the Bible, swore to tell the truth, and then lied and made up a story, and that the detectives from the Albany Police Department got together and risked their entire careers and got together with Ervin and Young to frame (Forbes). Then they got me involved to continue prosecuting the case, and then they got Judge Herrick and Judge (Thomas) Breslin to go along with these cooperation agreements and allowed them to come in here and lie."

The decision said Conley wrongly shifted the burden of proof from the prosecution to the defense. It said the prosecutor's "conspiracy" comment was not a fair reflection of the evidence at trial. It said Conley wrongly told jurors they could believe Forbes "only" if they believed the judge permitted witnesses to lie.

"Simply put," Egan wrote, "the prosecutor's conduct in pitting defendant against the very judge who had presided over the course of the trial was inexcusable and, despite defense counsel's prompt objection and County Court's appropriate curative instruction, the prejudicial impact of that conduct cannot be ignored."

The decision said Conley repeatedly vouched for the credibility of prosecution witnesses, which is not permitted. Egan noted Conley also suggested that the "only reason" Forbes was not involved in another robbery on Lancaster Street with his two alleged cohorts was he was in custody.

Stelling, who has a Ph. D. in French linguistics, made it to Albany Medical Center Hospital after the attack. He was in a medically induced coma and spent nearly two weeks in an intensive care unit.

The night of the assault, Stelling's brother text-messaged him hoping to locate him. One of the attackers returned the text message posing as the brother. They then pretended that Louis Stelling had forgotten his credit card PIN number, asked for it and tried to lure the brother to near the Ida Yarbrough apartments. He drove there and spoke to them from his car, then drove away and called police.

Forbes, Young and Irving were arrested after Forbes allegedly used the victim's credit card to buy hats at a store in Crossgates Mall.

At the time of the attack on Stelling, Forbes was eight days removed from his 16th birthday. Had he been 16 at the time, he could have been sentenced to 25 years in prison for his assault and robbery convictions.

Before he was sentenced by Herrick, Forbes complained it was unfair to send him to prison because he was about to visit Europe as an exchange student.

On Wednesday, Forbes' appellate attorney, Matthew Hug, told the Times Union: "I am certainly pleased with the court's decision as it breathes life into the protection that while a prosecutor may certainly strike hard blows during a summation, they will not be permitted to strike foul ones."

Conley could not be immediately reached.

Cecilia Walsh, a spokeswoman for District Attorney David Soares, said the office "respects the decision and will proceed accordingly."